True, the agency response (see second page of report) to reporters’ questions about the Unintended Acceleration events two Office of Defects Investigations engineers witnessed, videoed and captured data from was tortured. The most interesting admission was swaddled in a lot of hot air about how wonderful and competent the agency is at ferreting out problems and protecting consumers, but it was there:

“We sent two investigators to evaluate and inspect a vehicle based on a complaint we received (complaint number 10428551) and did not find any evidence linking the car to known causes of unintended acceleration cases,” [emphasis ours] the agency said in a statement. “NHTSA concluded that the speed of the vehicle could easily be controlled by the brakes. In contrast to other UA complaints, the vehicle displayed ample warning lights for the driver indicating the car had encountered problems.”

To recap: Joseph H. McClelland, an electrical engineer who heads the of the Office of Electric Reliability at the Federal Energy Regulatory Commission, reported to NHTSA in May that his 2003 Prius had experienced multiple UA events. The agency sent out two engineers to investigate. In a sworn statement McClelland described how the engineers witnessed his Pius accelerate five times without floor mat interference, a sticking pedal or a driver error. With great excitement, they videoed it and downloaded real-time data onto their computers, showing that the engine was racing, uncommanded by the driver.

They told McClelland that they might want his vehicle for research, and in the meantime, to park it and secure it. Three months later, they got back in touch: Thanks, but no thanks, they said, your vehicle is too old and worn out. The agency did not put McClelland’s complaint in the Vehicle Owner Questionnaire database until September, at the request of Safety Research & Strategies. We FOIA’ed for the videos and data, but the agency turned us down. Yesterday we sued them in U.S. District Court, alleging that NHTSA has improperly withheld the information.

As the news was reported by SRS, The New York Times, and Rhode Island CBS and FOX affiliate WPRI, NHTSA issued a written response, so as to sidestep troublesome follow-up questions, such as:

If the UA event, witnessed, videoed and captured on computer by NHTSA wasn’t caused by “known causes” why did the engine of McClelland’s Prius “race wildly” with no mechanical interference or command from the driver?

One more, if we may:

Is NHTSA saying that it is acceptable for a vehicle to have an uncommanded acceleration as long as there are some flashing lights and the vehicle is controlled by the brake (or in this case, was able to shift into Neutral)? What about all the drivers too surprised by the complete unpredictability of their Toyota to effectively apply the brake or shift in time? Or the drivers who don’t have enough time and distance to bring the vehicle to a safe stop? What about the instances in which the throttle opening is larger, and control of the brakes much harder than it was in the McClelland vehicle?  If this sort of vehicle behavior is acceptable, what, exactly, is considered unacceptable by this taxpayer-funded, federal, safety agency?

Well, we don’t want to hog the whole imaginary press conference, but we definitely have more questions. Or better yet, release the videos and the data, and we’ll take it from there.

Finally, in its canned response, NHTSA aimed its pea-shooter at SRS, alluding to us as “some groups that are continuing to raise the specter of potential electronic issues around unintended acceleration.” That specter bit is clever – a little “ghost in the machine” echo, eh?

Actually, the group raising the issue are Toyota owners who continue to experience unintended acceleration events that are “not linked to known causes,” i.e., electronics.  The agency fielded 330 complaints for UA events in 2011. These consumers have been turned away by the automaker and the regulatory agency charged with protecting them. When they contact us we will continue to share their stories and study this complex technical issue.

“They said: Did you see that?” the Prius owner recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.”

They videotaped these incidents, excited that, at long last, they had caught a Toyota in the act of unintended acceleration, with a clear electronic cause. The engineers downloaded data from the vehicle during at least one incident when the engine raced uncommanded in the owner’s garage and admonished the owner to preserve his vehicle, untouched, for further research.

But three months later, the agency decided that there was no problem at all. The agency thanked the Prius owner for his time and said that it was not interested in studying his vehicle. This critical discovery was never made public. The agency did not even put this consumer complaint into its complaint database, until months later, at the request of Safety Research & Strategies.

Today, for the second time in as many months, SRS sued NHTSA for documents, alleging that NHTSA has improperly withheld material that has vital public interest.

Officially, NHTSA had closed its investigation into Toyota UA three months earlier with the release of its reports Technical Assessment of Toyota Electronic Throttle Control (ETC) Systems and Technical Support to the National Highway Traffic Safety Administration on the Reported Toyota Motor Corporation Unintended Acceleration Investigation. Written by the agency and its contactor, the NASA Engineering Safety Center, these assessments did not foreclose the possibility that UA could have an electronic cause. In fact, the NASA scientists found physical evidence of one electronic cause of UA in some Toyotas: tin whiskers in the accelerator pedal position sensor. But U.S. Department of Transportation Secretary Ray LaHood, who presented the results to the media, was firm in his characterization:

“The jury is back,” he announced. “The verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”

Nonetheless, Prius owner Joseph H. McClelland is not your typical Toyota owner. He is the Federal Energy Regulatory Commission’s Director of the Office of Electric Reliability. A member of the FERC since 2004 and the agency’s first director of the Office of Electric Reliability since 2007, McClelland is an electrical engineer with more than two decades’ experience in the electric utility industry and cyber security.

And ODI’s visit to McClelland’s Chambersburg, PA home was not your typical consumer vehicle examination. Agency engineers were witnesses to and collected real-time data of Toyota Unintended Acceleration. If the agency was not pursuing this incident, Safety Research & Strategies, which has been studying the Toyota Unintended Acceleration issue for more than two years, was interested in gathering the details of NHTSA’s examination of McClelland’s Prius. In late September, SRS submitted a Freedom of Information Act (FOIA) request for all documentation associated with McClelland’s complaint to the agency. The agency turned over six pages, a few hand-written notes and a couple of heavily redacted emails. It refused to release the videos, photographs and computer data ODI generated that day.

“For years now, Toyota has been telling the public that there are no causes of unintended acceleration in their vehicles beyond floor mats, sticky pedals and confused drivers. NHTSA has stood by their side nodding in agreement. The two have repeatedly told consumers that the incidents they have reported – as they have reported them – could not have happened,” Sean Kane, President of Safety Research & Strategies, said.  “Mr. McClelland’s Prius and the NHTSA investigation of his unintended acceleration put the lie to all of that. Unintended Acceleration in Toyota vehicles continues to this day, and the public has a right to know why.  The agency needs to stop hiding evidence and release the videotapes and documents immediately.”

The McClelland Incidents

McClelland bought his 2003 Prius used from Auto Bargains. The vehicle had been rear-ended at about 8,000 miles, but the engine drive train and the hybrid system were still intact. The rear end was repaired and in the course of eight years of commuting the vehicle accumulated about 280,000 miles.  Except for a failure of the exhaust system,  the Prius performed extremely well for many years and over many miles. But in early May, McClelland’s Prius accelerated unintentionally numerous times.

He was on his way to work, not far from his home, when the vehicle suddenly went to “severe acceleration,” he recounted in a sworn statement. McClelland knew about the Toyota UA controversy.

“So, immediately I checked the position of floor mat.  The floor mat wasn’t up against the accelerator pedal.  I put my toe up against the back of the accelerator pedal to see if it was stuck.  It was not stuck; it was fully up.  So it had nothing to do with either the floor mat or the accelerator pedal.  So that led me to believe that the vehicle was accelerating on its own and I needed to get it off the road and try to re-set it by shutting the vehicle off and restarting it,” he said in his statement.

Once safely off the roadway, he shifted the transmission into neutral and shut the engine off. About two miles later, McClellan’s Prius accelerated again, as he gave a little gas to maintain speed:

“The engine started to rev,” he recalled in his sworn statement. “Actually, almost roaring, and the vehicle started to pick up speed, but I was very well aware of the  surroundings, so I was able to pull over again to the left into a shopping center, put it in park, stop it, and reset it, and get the vehicle moving again.”

The Prius continued to accelerate on its own throughout his drive to Washington on his way to testify before the Senate Committee on Energy and Natural Resources, and home again. He immediately contacted NHTSA, and a week later, an agency representative returned his call. He advised McClelland to keep the vehicle parked until the engineers could come out and take a look.

NHTSA ODI Engineers Videotape Unintended Acceleration

On May 17, McClelland and the NHTSA engineers met. The ODI staffers were clear: they had never found a cause for UA in a Toyota other than floor mats, sticking pedals and driver error. McClelland assured them that none of those was the cause of his incidents. The trio went for a test drive to see if the Prius would malfunction in their presence. McClelland drove the vehicle to the site of his first UA experience:

“[The Prius] started to accelerate and speed.  The engine was racing and, you know, we went around the turn and started for the straight away where we could, again, pull off the road and reset the vehicle. They asked at that point if while the vehicle was accelerating, they asked if the floor mat was in place or if the accelerator was stuck, and I lifted my foot up and I said, ‘Check for yourself.’ The engineer “leaned over and saw the floor mat in place and the accelerator was all the way up to a position where it wasn’t depressed and he confirmed, ‘You’re right. This vehicle is doing it on its own.’ ”

McClelland pulled over, shifted the vehicle into neutral and shut the engine down.  The trio repeated the sequence. And the Prius continued to experience unintended accelerations, while the ODI engineers videotaped it. “They generally seemed excited.”  McClelland said in his sworn statement.  “They said that they hadn’t seen a vehicle display this type of behavior before, capturing the information in real-time, and they said this could be an important vehicle for the sudden accelerations and it might help put some of the pieces together.”

Using their laptop, the engineers attempted to pull error codes from the ECM. When they failed to find any, they called in a colleague for an on-the-fly computer consultation. After an hour of configuring, the engineers were able to download data from the ECM. One showed McClelland a particular data field “where the voltage from the accelerator showed zero volts, which means it wasn’t engaged and wasn’t depressed, and yet the computer, on-board computer was calling for the engine to accelerate twice its idling speed and, actually, calling for more than twice.  So two times as much and then more because while it’s running the vehicle, even in parked mode, it went into sudden acceleration on more than one occasion,” McClelland said in his sworn statement.  “So they were pulling that information in real-time, and that was just one data field.  It looked like they had a lot of other data fields that they were capturing and recording and keeping for further analysis, so I could expect software versions and printed copy would be available.”

The trio returned the Prius to McClelland’s garage after the Prius experienced three unintended accelerations. The vehicle had a fourth incident on the way back to McClelland’s home, and then a fifth while parked. McClelland had backed the Prius into his garage, and one engineer remained “in the vehicle with his leg out and the door opened and he was extracting data.  It went into sudden acceleration,” McClelland recalled in his sworn statement.

“The engine started to race, and he asked if he could put it in drive, and I was very concerned at that point. I said if you put in drive, I’m not sure what will happen.  If that car takes off on you, if you put it in drive, it’s going to take that door off and probably sever your leg.  I said you need to set the parking brake and you need to stand on that brake and get your leg inside if you want to put it in drive.  You do that, then I’m okay with you putting it in drive. He did it, and sure enough that vehicle lunged forward and it took off.  He said something to the effect you’re right, had I not done that, that vehicle would have accelerated out the garage.  And I said, yes, and we would be taking you to the hospital to get your leg re-attached at this point, too.”

The Excitement of Discovery Evaporates

The engineers made no promises to McClelland, but told him that the agency might want to buy his vehicle for research. They told McClelland to park the Prius and secure it. They would get back to him. McClelland followed their instructions and waited. Three months went by without a word.

Finally, in August, NHTSA got back in touch. They weren’t interested in buying McClelland’s Prius, after all, he recalled:

“They were not going to purchase the vehicle because they determined that the vehicle was an end-of-life issue.  In other words, it had so many miles on it and it was so worn that it wasn’t pertinent to their interest in the sudden acceleration cases with Toyota,” McClelland said.

“I did ask further, I said what was the cause of the issue with the vehicle, and they said that they thought from the analysis that they did, they thought that one of the hybrid cells had failed in the hybrid battery, and that caused a low voltage condition, and because of the low voltage condition, the on-board computer was asking the car engine to accelerate to compensate for the low voltage – to charge the low voltage cell and that is what was causing the unintended acceleration, they thought. I asked if that could happen at the beginning of life?  It seemed to me like a hybrid cell could fail earlier on, and, you know, could be an issue regardless of the life of the vehicle, and they said, you know, they really hadn’t examined that aspect.”

SRS Files Second Suit Against the Agency

On the heels of the release of the NHTSA-NASA report, DOT Secretary Ray LaHood made the rounds among media outlets, asserting the impossibility of an electronic cause of high-speed Unintended Acceleration in Toyota vehicles. In a February 8, 2011 interview with the PBS News Hour, LaHood also affirmed the integrity of NHTSAs investigative process:

“When we get a complaint, we look at it. We don’t just put it over here and say, we will get to it later. We take every complaint seriously. And, again, we are data-driven. And our people do look carefully at these – these complaints and study them, and make sure that they are taken seriously…” LaHood told newscaster Jeffrey Brown.

The agency’s handling of the McClelland complaint belies that. Here, two ODI engineers had witnessed an unintended acceleration in a Toyota vehicle with no mechanical cause. They videotaped these incidents and captured real-time engine control module data as they occurred. McClelland’s complaint was not added to the agency’s Vehicle Owner Questionnaire database until September, even though he reported it to the agency in early May.

“NHTSA continues to brush aside incidents and data that don’t fit their narrative” Kane said. “We have seen the agency ignore data, deliberately mischaracterize data and hide data.  This is unacceptable behavior for a ‘data-driven’ safety and public health agency.

In December 2011, SRS sued NHTSA over the release of other Toyota UA investigation documents. The civil action, filed in U.S. District Court for the District of Columbia alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida, and requests the court to order their release.

Today’s civil action, also filed in U.S. District Court for the District of Columbia alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding records involving the McClelland incidents.

The panel’s most significant critique was an acknowledgement that NHTSA is ill-equipped to deal with the new age of vehicle electronics:

“For NHTSA to engage in comprehensive regulatory oversight of manufacturer assurance plans and processes, as occurs in the aviation sector, would represent a fundamental change in the agency’s regulatory approach that would require substantial justification and resources (see Finding 4.6). The introduction of increasingly autonomous vehicles, as envisioned in some concepts of the electronics-intensive automobile, might one day cause the agency to consider taking a more hands-on regulatory approach with elements similar to those found in the aviation sector. At the moment, such a profound change in the way NHTSA regulates automotive safety does not appear to be a near-term prospect.”

Conclusions like these pepper the NAS report. Throughout The Safety Promise and Challenge of Automotive Electronics; Insights from Unintended Acceleration, the panel tries to have it both ways: to lay claim to a scientific process, without employing any actual science, to maintain that it was not second-guessing NHTSA’s investigations, but concluding that the agency was justified in closing them; to say that the Audi Sudden Unintended Acceleration controversy isn’t comparable to the Toyota debate because automotive technology has changed so drastically, and yet lean heavily on the 1989 NHTSA-commissioned report, An Examination of Sudden  Acceleration.

Unfortunately, these equivocations do nothing to enhance our understanding of or to resolve the problem of Toyota unintended acceleration. In fact, these events continue to occur. Toyota drivers, who have not been put off by the NHTSA and Toyota’s steady drumbeat of floor mats and driver error, are still reporting their incidents to the agency’s consumer complaint database. (We will be releasing the 2011 numbers shortly, along with interviews from drivers.)

Consider the deaths of Perlita and Eugene Macala on January 12, in Las Vegas, after their 2002 Toyota Camry “sped through a red light” on an I-215 off-ramp and “slammed into a concrete wall,” according to news accounts. A witness, Jodee Talley, who was behind the Macalas on the freeway said: “They were traveling at just a little bit of a higher rate of speed than me in the beginning – until they started braking. The reverse lights were flashing and then it just darted as if they had floored the vehicle…It was hard to understand how the car went from slowing down to just in a flash slamming against the wall head on at such a high rate of speed,” Talley said. “My first thought [was] that it was somebody just driving erratically, but it just didn’t make sense once they actually collided with the wall.”

Floor mats? A confused driver? The 2002 Camry has been among the most troubled vehicles and is outside of any recall.  Was Mrs. Macala braking, as the witness and the brake lights suggest? The NAS panel appeared unable to understand the concept of unintended acceleration occurring while the driver is braking:

“The NASA investigators further confirmed NHTSA’s conclusion that the ETC could not disable the brakes so as to cause loss of braking capacity, as often reported by drivers experiencing unintended acceleration commencing in a vehicle that had been stopped or moving slowly,” the report states.

There are several reasons why braking could be ineffective in a UA event, ranging from the depletion of the vehicle’s vacuum power-assist braking system during a long-duration high-speed event to insufficient space to bring the vehicle under control before it crashes in a low-speed parking incident. While mechanical and electro-mechanical systems are separate, they are connected by the vehicle’s electronic architecture and they are constantly interacting. The Electronic Control Module, the vehicle’s central computer, is orchestrating many vehicle tasks and the ECM can and does, at times, misinterpret driver commands and sensor signals – including the command to brake. For example, in May 2010, GM recalled 2005-2006 Corvettes with tilt and telescoping steering wheels because the steering wheel angle sensor could become corrupted, causing one side of the vehicle’s brakes to actuate which can put the car into a spin.

The NAS similarly misunderstands the real world of Event Data Recorders (EDRs or “black boxes).  The automotive version of a device well-known in avionics is far from the hardened devices found in today’s aircraft.  Any seasoned crash investigator can recount inconsistent readouts from EDRs, which can only supplement other evidence.  NAS suggests that advanced and mandated EDRs could stand in as the impartial witness to the behavior of the driver and the vehicle in a crash.

The panel gives short shrift to the most significant physical evidence of a root cause of Toyota Unintended Acceleration discovered to date: tin whiskers in the accelerator pedal position sensor. Tin whiskers are a well-known cause of electronic malfunction and surely worth further study in the age of increasing automotive electronics.

There are many other indications throughout the report that NAS got it exactly backwards. For example, the NAS panel did not recommend that NHTSA upgrade Federal Motor Vehicle Safety Standard 124 Accelerator Controls, written in 1972. Rather, it accepted NHTSA’s explanation that the current regulation was sufficiently technology-neutral and its example of a similar regulatory scenario, FMVSS 114:

“Because the FMVSSs are intended to be technology neutral, the changeover from mechanical to electronics systems in recent years has not necessitated substantial regulatory revisions. For example, NHTSA officials informed the committee that the introduction of keyless ignition systems occurred within the context of the existing FMVSS 114. The agency has interpreted the standard’s requirements governing the use of a “key’’ as encompassing both a traditional physical key and codes that are electronically transmitted by a fob or entered by the driver using a keypad inside the vehicle.”

As it happens, for years automakers were forced to seek interpretations from agency counsel on how FMVSS 114 applied to the new systems, because it wasn’t clear. Further, the agency decided to address this confusion in 2006 by upgrading the 114 to encompass electronic keys. Just last month, the agency published a Notice of Proposed Rulemaking proposing to significantly re-write the standard, because keyless ignition systems had introduced new safety hazard – carbon monoxide poisoning – unanticipated by the old regulation based on old technology. (See Stupid Tricks with Smart Keys)

FMVSS 114 provides an excellent illustration of why the agency should upgrade FMVSS 124.

The NAS panel points out “the importance of considering the totality of the evidence in investigations of reports of unsafe vehicle behaviors.” And there’s the problem right there. The cherry-picking of the data began with very first Camry investigation in 2004 and continues today. This phenomenon was captured best by Toyota’s Chris Santucci.

In May 2009, Santucci sent an e-mail to colleague about his progress in the negotiations with the agency to close DP09-001. A Lexus owner who had experienced a high-speed UA event in his Lexus ES350 had requested that the agency specifically investigate events that implicated the vehicle’s electronic throttle control, instead of floor mats, as a root cause.  As characterized by Santucci, NHTSA was looking for the way out:

“I have discussed our rebuttal with them, and they are welcoming of such a letter, They are struggling with sending an IR letter, because they shouldn’t ask us about floormat issues because the petitioner contends that NHTSA did not investigate throttle issues other than floor mat-related. So they should ask us for non-floor mat related reports, right? But they are concerned that if they ask for these other reports, they will have many reports that just cannot be explained, and since they do not think that they can explain them, they don’t really want them. Does that make sense? I think it is good news for Toyota.

No one would say that the controversy has been “good” for Toyota. Yet, the automaker’s ability to use an alphabet soup of government agencies to quash the truth about the problems with its vehicle electronics, to effectively hide from public view what it knows about the causes of those problems, to avoid fixing them or compensating customers who are saddled with them is an impressive achievement.

The civil action, filed in U.S. District Court for the District of Columbia (Civil Action No. 11-2165), alleges that the U.S. Department of Transportation and NHTSA violated the Freedom of Information Act by withholding public records involving an unintended acceleration incident reported by a 2007 Lexus RX owner in Sarasota Florida, and requests the court to order their release.

“One of President Obama’s first acts was to issue an Executive Order on transparency and open government, pledging a commitment to creating ‘an unprecedented level of openness in government,’” says SRS founder and President Sean E. Kane. “The DOT and NHTSA have pledged transparency but have consistently kept vital information from the public.  The agency’s numerous investigations into Toyota Unintended Acceleration have been characterized by continued secrecy, preventing a full accounting of their activities and the complete replication of their analyses by independent parties.  This lawsuit asks the court to compel the release of documents that are relevant to a significant safety recall.”

On December 2, 2010, Timothy Scott, 47, was driving at less than 15 mph, before braking to make a turn into his apartment complex, when he noticed that his vehicle was not slowing. Scott applied the brakes with all of his strength, but the engine was “screaming,” as he later described it, and the tachometer was approaching to “red-line.” Scott was able to slow his vehicle and shift into stop. He attempted to re-start his 2007 Lexus RX twice, but the engine continued to race. When Mr. Scott exited his vehicle, he immediately checked to be sure the floor mats were still secured by the anchors; he found nothing obstructing the accelerator pedal.

The Lexus dealership initially blamed the floormat, even though the floor mats in Scott’s vehicle had not been recalled and were fully secured.  Toyota sent a team of engineers to inspect the Lexus, who concluded that dislodged molding jammed the accelerator, a scenario Mr. Scott adamantly denied.  Three weeks later, Toyota offered to buy the entire vehicle from Mr. Scott–a rare and unusual offer from the automaker–rather than simply fix a piece of plastic molding.

In February 2011, Toyota announced it was recalling the 2007 Lexus RX as well as other models and model years to replace the driver’s side floor carpet cover and its two retention clips, because an improperly installed forward retention clip in the center console could allow the carpet to obstruct the accelerator pedal.  (The recall included 372,000 2004 through 2006 and early 2007 RX 330, RX 350, and RX 400h vehicles as well as 397,000 2004 through 2006 Highlander and Highlander HV vehicles.)  In 2006, Toyota recalled 2004-2005 and early 2006 Highlanders and 2004 – 2005 Lexus RX 330 and 2006 RX400h for the same problem.

A field team from NHTSA’s Office of Defects Investigation looked into the Scott incident, generating photos, videos and other documents, which SRS had sought as part of its ongoing research into Toyota UA.

SRS has been examining the public record regarding Toyota UA since 2009.  The company has issued numerous, detailed reports, report updates, and analyses related to the unintended acceleration in Toyotas based on public records (see Toyota Sudden Unintended Acceleration). The company has sponsored additional reports on other aspects of Toyota UA from statistical and automotive electronics experts.  These analyses, released to the public, document the troubling inconsistencies in those records and in statements by Toyota, the DOT and NHTSA.  The DOT and NHTSA analyses fail to adequately account for UA claims in non-recalled models and years, and for UA events that cannot be explained by mechanical interference or driver error.

This body of research has been tapped by Congress, independent scientists and engineers, the media and consumers seeking to better understand this crisis, how it unfolded, and its safety implications for Toyota vehicles, NHTSA’s ability to adequately investigate and regulate electronic defects, and future designs of electronic throttle systems.

In contrast, NHTSA has withheld all but a few records related to the Scott investigation, making the extraordinary claim that factual documents, including photographs and videos, were part of the agency’s “deliberative process” and exempt from public disclosure.

SRS argues that the agency’s actions prohibit a full understanding of an important safety recall and its adequacy.  SRS’s lawsuit follows a recent Department of Transportation Inspector General report criticizing NHTSA for its lack of transparency and documentation in its investigations and comes on the heels of disclosure that NHTSA hid months of investigation into Chevy Volt post-crash fires.

“Shielding documents that clearly belong in the public domain only diminishes the DOT and NHTSA’s credibility and leaves consumers wondering who and what they are really protecting” said Sean Kane.

“What do you think about the public in terms of them providing – being provided with more information regarding potential safety defects that automakers tell the department about even before an investigation is opened or a recall is announced?

LaHood replied: “Need for transparency.  The more information we can give the public, the better.”

Unless…..the defect is really bad, and the press will be on it like white on rice and it involves a major automaker, whose fortunes are tightly entwined with the government. Yes, we’re looking at you General Motors. (Or, as some would have it, Government Motors.)

On June 2, a Chevy Volt that had been subjected to an New Car Assessment Program (NCAP) pole impact test three weeks later burst into flames. The fire, apparently caused by intrusion into the lithium ion battery which ruptured the coolant line, consumed the Volt and burned three other vehicles parked nearby in a Wisconsin storage facility. Five months later, investigators ran three more tests on the battery alone to simulate a crash impact. One of the batteries caught fire; another emitted sparks and smoke. On Black Friday, NHTSA opened a low-level defect investigation – Preliminary Evaluation (PE) 11-037 was born.

But where oh where is the documentation? The test report for the toasted Volt? The Information Request Letter to GM and other manufacturers of hybrid electric vehicles?  The subsequent battery test reports? A GM spokesman said that NHTSA worked with the automaker “for months” after the initial fire. Where’s the documentation of that?

Who needs any information? According to NHTSA everything’s just fine! Don’t be afraid to buy a Volt:

“NHTSA continues to believe that electric vehicles have incredible potential to save consumers money at the pump, help protect the environment, create jobs and strengthen national security by reducing our dependence on oil,” the agency assured consumers as it announced the investigation.

Indeed. (Although we’re not sure a burning car actually helps the environment, not to mention those pesky batteries and coal burning power plants that power much of the grid to charge them…)

This nascent investigation is already hitting a few troubling notes.

Things to ponder:

One would expect that this high-profile and technically specific investigation would require an investigator with lots of experience in hybrid electric vehicle systems and design – or at a minimum with an electrical engineering background. Instead, the lead investigator in this sensitive investigation is a mechanical engineer fresh out of college with no apparent electrical engineering background or experience. She joined the agency one month before the Volt ignited.

Why are there no documents in the public file? NHTSA, when it deigns to release key documents at all, likes to wait until the mainstream press has moved on and is unlikely to pursue a follow-up. Really – the ink isn’t even dry on the Office of the Inspector General’s October report rapping NHTSA for its lack of transparency and documentation (see DOT Inspector General Audit Finds NHTSA Defects Office Needs Improvement but Examination Falls Short).  In levying the largest civil fine in the agency’s history against Toyota, the government neglected to provide any documentation explaining how the automaker had violated the recall regulations. In releasing the agency’s technical assessment of Toyota unintended acceleration, the agency withheld the lengthy technical report from reporters until the press conference, leaving them no time to read, let alone digest the report. Then, Mr. Transparency himself, X-Ray LaHood, had the temerity to complain that no one had read the report. It was full of unsupportable redactions. The agency got around to unscrubbing the report months later (see NHTSA Keeps Toyota’s Secrets, Part II).

When did it become acceptable for a federal regulator to give the public a sales pitch during an investigation? We saw the same odd behavior as the agency wrapped up the Toyota investigation. After effectively mischaracterizing the results of the technical review, Secretary LaHood declared:  “I told my daughter that she should buy the Toyota Sienna, which she did. So I think that illustrates that we feel that Toyota vehicles are safe to drive.”

The entity you regulate and investigate is not and cannot be your “regulatory partner.” NHTSA must maintain its objectivity and oversight authority. NHTSA, you are not on Team GM or Team Toyota; you’re the ref, and those guys are workin’ you.

We all know that the American economy needs growth and that green energy is the future, but must we trample safety, scientific objectivity and consumers in the process?

We’ve somehow lost the ability to hold corporations accountable in the name of an allegedly greater good.

The A’s, as Michael Lewis, author of the book on which it is based describes the team, was populated with Major League’s castoffs – catchers and pitchers who looked more like beer-swilling bowlers, college prospects that the talent scouts had deemed too cold to bother with, and a computer nerd for an assistant GM.  But Beane knew from his own field experience just how wrong Major League Baseball could be in assessing players. He chose, instead, to exploit a different set of metrics developed by a passionate fan who happened to be statistically apt, but shunned by the rest of Beane’s peers. Using this recipe, he cobbles together victory after victory.  The book roughly follows the A’s during the 2002 season, from the June amateur player’s draft to the historic September 4^th game, in which the A’s won their 20^th consecutive game – breaking a 102-year old American League record.

Among the book’s heroes is Bill James. James is the quirky inventor of Sabermetrics, the statistical analysis of baseball data, used to better understand success and failure in the game. James had a restless, numerically inclined mind and, it would be fair to say, an obsessive interest in baseball. The marriage of his aptitude and his interests produced a series of abstracts and books on baseball metrics, beginning in 1977. At first, James was ignored by all but a handful of fans. But, eventually, he gained a following. And in 1997 one of them became the manager of the Oakland A’s.

If the narrative has a villain, it’s Major League Baseball itself. Wholly in the thrall of its own myths, this billion dollar enterprise, when it bothered with data at all, used it incorrectly. Rich teams could skim the obvious cream of talent, but beyond buying wins, hadn’t a clue how it was really done.

Lewis’s point was that even with huge sums of money at stake, those most vested in the outcome can be utterly blinded by their own subjective biases. Once biases are institutionalized, they become facts, stubborn in the face of new or competing or different information. Those who can’t even identify the data that should be informing critical decisions – let alone using it properly – are bound to make expensive mistakes.

So what’s The Safety Record’s point? We saw a number of striking parallels to the way NHTSA operates, when it comes to numbers.  The agency is, ostensibly, data-driven and science-based. Hell, it slaps that phrase on everything from Powerpoint presentations to appropriations requests. But there’s plenty of evidence that the agency dismisses – out-of-hand – outside information; that long-held beliefs hamper its data analyses; that it pays way too much attention to data that is not useful and fails to collect data that is.

Moneyball: For example, here Lewis characterizes James’ assessment of MLB’s metrics:

“Worse, baseball teams didn’t have the sense to know what to collect, and so an awful lot of critical data simply went unrecorded.”

NHTSAball: There’s lots of data NHTSA doesn’t collect. For example, the agency has promulgated a recall system for tires that is predicated solely on the Tire Identification Number. Years of rulemaking were devoted to debating the format of the TIN, popularly known as the DOT code, an 11-character, alpha-numeric code that represents the plant, size, date of manufacture molded into the sidewall of a tire. The aim of the TIN was to identify a recalled tire and it is the only definitive measure to do so.  Does NHTSA require tire makers who recall their products to list the range of TINs in the recall population? No, it does not. Some manufacturers report it; others don’t. NHTSA’s good, either way. The DOT code would be a nifty little data point in any tire-related fatality in the Fatality Analysis Reporting System. The agency could use such data to identify tire failure trends, but it remains information uncollected. And while we’re on tires, NHTSA doesn’t require manufacturers to report tire claims if the tire is older than five years – so no data, no problem for the aged tire issues that took center stage following Firestone recalls in 2000 and 2001 and remain a constant source of catastrophic crashes.

The GAO criticized NHTSA in a June report on the agency’s recall practices for not using recall repair rate data to analyze trends and institute best recall practices:

“Based on our analysis of NHTSA data, without conducting a broader aggregate level analysis to look for outliers, patterns, or trends, the agency may be missing an opportunity to identify underlying factors that affect recall campaign completion rates.”  (see GAO Study:  NHTSA Needs Improvement)

The DOT’s Office of the Inspector General has twice rapped the Office of Defects Investigations, in 2002 and 2004, for failing to have a systematic defect screening process to “identify high priority cases and to ensure a degree of consistency in the decision making process.”

Moneyball: On the concept of collecting fielding error stats, James concluded, according to Lewis: “…the concept of an error, like many baseball concepts, was tailored to an earlier, very different game… The statistics were not merely inadequate, they lied. And the lies they told led the people who ran major league baseball teams to misjudge their players and mismanage their games.”

NHTSAball: Here we have to bring up one of our enduring themes – NHTSA’s inability to look beyond driver error in Unintended Acceleration complaints. The agency’s intractable position was cemented into place in 1989, with the publication of “An Examination of Sudden Acceleration,” the agency’s contracted report intended to end the debate on what caused these seemingly inexplicable events. Allan Kam, who worked as an enforcement attorney for 25 years, explains that the study, called the Silver Book within the agency in reference to the color of its cover, took on an almost religious status within ODI.

“When the Silver Book came out that was viewed by ODI staff as the Bible – it was validation that SUA equals pedal misapplication,” Kam said. “Thereafter, reports of alleged SUA were compartmentalized as pedal misapplication. There was an institutional bias against the credibility of consumers reporting SUA—they must be mistaken; they were rationalizing it because they didn’t want to take responsibility. It was thought to be mechanically impossible. Of course, when that report was prepared there were less complicated electronics on vehicles.”

The agency has ample data and evidence that electronics are implicated in Toyota UA events – the discovery of tin whiskers in accelerator pedal electronics, Toyota’s own dealers and field technical staff reports, an unexplained spike in consumer complaints after the introduction of electronic throttle controls in popular Toyota models; incidents in which pedal misapplication is not plausible and pedal interference has not occurred. And yet, it’s The Silver Book, first, last and always.

Moneyball: Lewis writes about the frustration that James and others encountered while trying to get more data from the majors and then the indifference club managers showed to valid performance indicators that didn’t fit their pre-conceived notions:

“The people inside Major League Baseball were, if anything hostile to the people outside Major League Baseball who wished to study the game.”

NHTSAball: There are many who have attempted to get NHTSA to look at vehicle-related safety problems and few have gotten any further than a polite hour or so in a conference room at headquarters. Safety advocate Janette Fennell has enjoyed an almost unparalleled success in advancing safety issues within NHTSA – and none of her accomplishments are the direct result of such meetings.

Fennell, the survivor of a kidnapping in which she was locked in the trunk of her own car, has been the driving force in compelling NHTSA to institute a rule for an emergency trunk release; to count deaths and injuries to children that occur in vehicle-related incidents that occur off the public roadways, such as power windows and backovers; and to begin rulemaking for a rearward visibility standard. Each advance was at the behest of Congress, which passed legislation compelling the agency to collect this information or to promulgate a rule. She recounts some of her earliest attempts to get NHTSA to look at the data she had collected regarding the number of individuals who found themselves locked in a trunk either by a criminal act or by happenstance, and the data about the number of children who were accidentally backed over by caregivers who didn’t see the child, due to the vehicle’s poor rearward visibility. NHTSA just didn’t collect vehicle-related injury and death data if it didn’t occur on a public roadway, she was informed. There was a rulemaking department, data collection department, human factors department, a child passenger safety department – but officials couldn’t easily categorize the safety issues she brought to their attention.

“There was skepticism,” she recalls. “I was politely seen and listened to, but they didn’t do anything about it partly because the data fit everywhere and yet it didn’t neatly fit anywhere. There were all these built in-prejudices and Big Government isn’t going to listen to a mom from Kansas,” she says “It’s a cliché – but it took an act of Congress.”

These are but a few examples. And, we could go on – about NHTSA’s data battles with the rigorous researchers at the Insurance Institute on Highway Safety, how Early Warning Reporting data is serving as an identifier of failed recalls, instead of as an early warning system, how the agency continues to use warranty data as a statistical benchmark for confirming defect trends, even though it is time-limited and is held by the manufacturers, and not subject to scrutiny for its biases.

In Major League Baseball’s case, it took two outliers – Bill James, who re-defined the statistical contours of the game, and Billy Beane, who applied them – to engender a quiet revolution in baseball. As a Wall Street Journal article on the movie points out, statistics aren’t the sum and total of the game. Once Beane’s blueprint for cheap wins was revealed, and other teams began to use it, the A’s lost a competitive advantage. Nonetheless, the bottom fell out of the value of the old metrics, and better metrics took hold. Even if they aren’t plugging the Runs Created formula into every player’s record, there is no doubt that the majors look at their own data differently.

What will it take to start a statistical revolution at NHTSA? Hard to say.

While there is no shortage of knowledgeable outsiders who are conducting valid and valuable statistical auto safety research, we’ve yet to see that brave outlier within the agency who is willing to push against the weight of institutional intransigence to information it doesn’t like until it topples.  It is unlikely that a Michael Lewis-type will come along to turn NHTSA’s statistical deficiencies into a clever non-fiction book. We definitely do not foresee a Hollywood movie in the offing.

NHTSAball, in fact, has very few spectators. And while there can be enormous sums of money at stake –recalls can cost an automaker a lot of money – unlike baseball, bad numbers don’t just lose games. They lose lives.

That a large corporation would conceal a deadly problem to protect its interests is hardly news – although the systemic and exacting strategies Ford employed in this case are notable. What makes this story important is how Ford also re-wrote the history on this issue and helped to shape the agency’s thinking about an ongoing problem for decades hence. We have only the public record regarding Toyota UA at our disposal – and precious little of that has actually been made public – so we can’t know how Toyota has assessed its own UA problem; if and what parallels in corporate misdirection might be drawn between Ford and Toyota. But one can see how Ford’s actions back in the 1980s still resonate with the agency today and how it has kept NHTSA from advancing its knowledge in electronic causes of UA that are not already detected by the vehicle diagnostics.

The Emergence of a Defect in the Age of Audi SUA

As recounted in the Judge Swigert’s order, the history of Ford and unintended acceleration goes back to 1973, when Ford’s cruise control was under development. Ford Engineer William Follmer “warned about the risk posed by electromagnetic interference, and cautioned that ‘to avoid disaster’ it was imperative to incorporate failsafe protection against EMI in the system’s design.” In 1976, two Ford engineers obtained a patent describing a design for the cruise control system’s printed circuit board to reduce the risk of a sudden acceleration posed by EMI.

But, in that same year, the company’s Electrical and Electronics Division determined that electromagnetic interference did not pose a significant risk and, therefore, “No special consideration was given to designing in electromagnetic compatibility.”

The switches in the cruise control system Ford developed and installed in millions of vehicles, such as Stimpsons’ Aerostar, were vulnerable at gear engagement to a current spike from electromagnetic interference that can bypass the control logic and induce the servo to pull the throttle wide open. The judge suggested that Ford had considered this possibility in 1979, putting $75 million in reserve to cover a recall for UA.

But the problem really blossomed in1984, after Ford introduced an advanced version of its engine electronics: EEC-IV. Where UA complaints before the introduction of this new technology were few, they began to increase rapidly once the 1984 models entered the fleet. During the 1980s, field investigations into UA complaints were documented in Service Investigation Reports, or SIRs, that were forwarded to Ford headquarters in Dearborn. This flood of complaints moved a Safety Office manager named Edward I. Richardson to begin informally reviewing the SIRs, in anticipation of a NHTSA investigation.

Richardson’s staff found a fact pattern in these UA complaints: “sudden accelerations from a standstill invariably began at gear engagement; drivers frequently reported that braking during the event was ineffective; field engineers often identified the cruise control electronics as the cause; field engineers frequently recommended replacing the cruise control servo; and there were no field reports identifying driver error as the cause of a sudden acceleration.”

On September 30, 1985, NHTSA opened the first of several investigations involving Ford. But the automaker kept its fact patterns to itself, and told the agency’s Office of Defects Investigation (ODI) that its “vehicle systems are not defective.” NHTSA closed the investigation in August 1986, because no component-related root cause could be determined.

Having skirted one NHTSA investigation, a manager in Ford’s Customer Service Division Alan Updegrove, met with Ford counsel and the office that employs in-house litigation experts to express his dismay over the inflammatory opinions found in the SIRs. At that September 1986 meeting, he recommended a new format for investigating UA complaints and assembled a team to develop a new investigative approach.

What was the source of Updegrove unease? The legal decision focuses only on the events that concern Stimpson v. Ford. But one need only consider what was happening elsewhere in the industry regarding what was known back then as Sudden Unintended Acceleration to understand Ford’s desire for pre-emptory action – namely Audi.

By September 1986, Volkswagen was had already recalled Audi 5000 vehicles with automatic transmissions from the 1978-83 model years in the U.S. and Canada twice to resolve drivers’ complaints of SUA from a standstill, with ineffective braking. The recalls, to secure the floor mat and prevent pedal interference, however, did little to squelch the complaints. Volkswagen was seemingly trapped in a public relations nightmare featuring injuries, deaths and hundreds of crashes trumpeted to anyone who would listen, by a group of well-organized, articulate and highly vocal owners.

On March 19, 1986, the founder of what would become the Audi Victims Network teamed up with the New York Public Interest Research Group, NY Attorney General Robert Abrams and Center for Auto Safety to hold a press conference demanding that NHTSA investigate Audi SUA.  Sales of the once-popular make were plummeting and despite Volkswagen’s launch of a service campaign to move the accelerator and brake pedals of the 1984-1986 Audi 5000′s, the agency decided to open a formal defect investigation into SUA involving 1978-86 Audi 5000s. In August 1986, after the agency launched its probe, Volkswagen announced that it would install a brake to shift interlock in the troubled vehicles. By November 1986, CBS would air its infamous segment on Audi SUA, which drove down vehicle sales even further.

The Ford Problem Grows

As Audi thrashed in the spotlight, Ford was receiving a steady stream of “malfunctioning cruise control servos under warranty for which no cause could be identified” complaints. In October 1986, Ford’s Electrical and Electronics Division documented for senior management “the reasons behind the rapid rise in undiagnosed failures in electronic components. The report identified six components, including the cruise control servo, whose undiagnosed failure rate had experienced the greatest increases. According to the report, prior to 1984, the cause of servo malfunctions had been identified 80 percent of the time, while after 1984 the rate plummeted to 20 percent. The EED report specifically identified ‘electromagnetic influences in the vehicle environment’ due to ‘the increasing complexity of electrical system’ as the root cause of this quantum increase in undiagnosed servo malfunctions; and since servos removed by field engineers investigating sudden accelerations were testing normal in Ford’s laboratories, it was clear that ‘electromagnetic influences’ were also the cause of the findings contained in SIRs the Safety Office was reviewing at the time.”

NHTSA wasn’t done, however. In December 1986, the agency notified Ford that it had identified 439 reports of “unexpected vehicle acceleration” that had resulted in “193 accidents, 106 injuries, and 5 fatalities … in 1983-1986 Ford vehicles” that could result in a safety recall. Ford would tell the agency in 1987, that they could find nothing amiss with any components.

Internally, however, Ford was working on solving the problem, as it tried to conceal it.

On January 12, 1987, Ford created a multi-disciplinary task force to study “how interactions between the engine and cruise control electronics were contributing to sudden accelerations.” The EED’s recommendation explicitly recognized that malfunctions involving the cruise control servo were caused by system level interactions, and not by detectable failures in individual components of the interacting systems.”

In March 1987, Ford began working on the flip side of the coin. The company assembled about 200 field engineers in Dearborn to receive new marching orders that would help Ford obscure the data. The old SIR format was discontinued and Updegrove’s new approach to UA investigations would take its place. All sudden acceleration related-SIRs would now be purged in the year they were generated. (Federal law requires that safety-related records have a five year retention period.)

Ford presented a very different face to NHTSA. As the NHTSA defect investigation wound on, Ford scratched up only 38 SIR reports – with only 21 relating to UA from a standstill. (In his decision, Judge Swigert agreed with the plaintiffs that the paucity of SIRs had more to do with the new retention policy than a lack of complaints.) In March 1987, Ford told the agency that an electronically-rooted SUA “would be expected to reveal physical evidence of causal origin,” even though the SIRs and the EED report said otherwise.

As it tried to hold off the agency, Ford continued to work on solving the problem.  A February 1988 memo from Stephen Hahn, a senior electrical engineer and leader of Ford’s SUA task force lent support to the conclusions of previous internal studies showing the problem was rooted in the system-level interactions between the cruise control and the engine.  He observed that “only when the vehicle speed control function is integrated into the EEC-IV system does the EEC system have the potential to produce a wide open throttle acceleration.” That fall, Ford engineers assembled the factors that could cause an unintended acceleration into a fish-bone schematic known as an Ishikawa diagram, “which identified electromagnetic interference on the output side of the cruise control electronics as a potential cause.”

Alan Updegrove’s investigation into sudden acceleration claims produced a detailed database of incidents, analyzed by a team that included representatives from the Powertrain Electronics Unit, the Automotive Safety Office, and the Customer Service Division. Their task was to “guide the investigation into key areas that included the engine control electronics, underhood linkages, wiring and speed control … and an extensive interview with the operator of the vehicle and any available witnesses to the event.”

One of the engineers on Updegrove’s team, James Auiler, testified that the “Updegrove database was a special study to get premium factual information so that we could do engineering analysis and due diligence and understand what was really going on.”

The foundation of the database was a questionnaire to be used by field investigators “to record facts and information indicating the likely cause of the occurrence.” The questionnaire was quite detailed, including information about driver behavior, direct observations from witnesses to the event, braking effectiveness; physical evidence, such as tire marks, and how the event terminated. The results were divided into six possible categories relating to causation and three categories identifying the engine behavior during the event. Updegrove’s team gathered a total of 1,900 cases in which the UA occurred upon gear engagement. The summaries of those cases determined that less than one percent were classified as pedal misapplication, and for 99 percent “the evidence collected logically supported the driver’ claim of an uncontrolled acceleration, but no physical explanation for the event was found during the vehicle inspection.”

Yet, in a December 1989 response to NHTSA’s sticking throttle investigation of Thunderbird and Mercury Cougar vehicles, Ford told the agency that “the Updegrove results supported the agency’s conclusion that driver error was the “most plausible cause” of sudden accelerations.”

Managing the Experts

Swigert ruled that keeping this information in-house required Ford to misdirect its own go-to electronics litigation expert, Victor Declercq, manager of the Ford Electromagnetic Compatibility Laboratory. DeClerq has been frequently dispatched to testify for Ford that there is “no evidence that Ford’s electronics are susceptible to an EMI-induced sudden acceleration.” But Judge Swigert added up a number of his pre- and post-trial assertions and determined that Declerq was not privy to any of the internal studies and memos outlining how electronic malfunctions in the cruise control could result in a wide-open throttle.

- Declerq admitted in post-trial testimony that a lawyer from the automaker’s Office of General Counsel denied that there was any engineering summary of the Updegrove results.

- Declerq acknowledged that “no Ford model with the cruise control electronics at issue here had been tested following a sudden acceleration; and that no testing replicating EMI on the output side of the cruise control had been performed.”

- In a 1999 in-house video, DeClerq could be seen using a table-top model of Ford’s cruise control system to demonstrate that five failures would have to occur simultaneously before a UA was possible.

- Declercq acknowledged “that he has frequently cited [the 1989 NHTSA study, An Examination of Sudden Acceleration,] to juries as support for his opinion that multiple, simultaneous, and detectable failures are prerequisites for a sudden acceleration.”  As the following section details, Ford misdirected the agency about the causes of UA as NHTSA gathered string for this study.

Tarnishing The Silver Book

One of the most riveting portions of Judge Swigert’s decision was his take down of An Examination of Sudden Acceleration, the 1989 study known within NHTSA as The Silver Book, in reference to the color of its cover.

In the wake of the Audi case, NHTSA commissioned the Transportation System Center to conduct an independent, industry-wide study of sudden unintended acceleration. It announced its intention in October 1987, just before Ford’s Electronics Reliability Study Team pegged EMI and the lack of uniform procedures for circuit analysis as contributory causes to the electronic problems plaguing Ford vehicles. As part of the information-gathering process, NHTSA had asked manufacturers to provide to the agency “all reports, studies, or investigations that might assist the TSC study.” Ford did not produce any of its internal studies showing the effect of EMI on its cruise control servo, it did not disclose the Ishikawa analysis or the Updegrove study.  The judge determined that Ford’s fraud in unintended acceleration had extended to misleading NHTSA in the preparation of this study.

When An Examination of Sudden Acceleration was finally published in January 1989, the researchers concluded, based – in part – on representations from manufacturers, like Ford, that “EMI was not a contributing factor to sudden accelerations; that at least two simultaneous and detectable faults would have to occur for the cruise control electronics to cause a sudden acceleration; and that, in the absence of such detectable faults, the most ‘plausible explanation was driver pedal error.’”

Ford knew from its own investigations that this was not true. But in October 1989, when NHTSA opened Preliminary Evaluation 90-001, asking Ford for studies or investigations that could explain a “failure of the throttle control system to properly control vehicle speed in 1988-1989 model year Thunderbird/Cougar models,” Ford cited The Silver Book to buttress its argument that, like NHTSA, it has been diligently searching for causes, but can’t find anything beyond driver error:

“Ford has received and investigated reports alleging sudden acceleration incidents, both with and without explicit allegations of brake failure, on virtually all vehicles it produces including the vehicles which are the subject of this inquiry. Ford’s investigations, like those of NHTSA and others encompassed numerous components, systems, complex interrelationships, and human factors. The typical scope of such analysis is manifested by

the diverse studies documented within the Transportation System Center CTSC) report; similar efforts continue at Ford, as exemplified by a schematic diagram, provided as Attachment 1, which was formulated by Ford engineering personnel to structure sudden acceleration-type incident analysis.”

In view of Ford’s decision to keep its knowledge about the causes of UA to itself, Judge Swigert was particularly critical of the underlying assumptions on which An Examination of Sudden Acceleration was based. He pointed to depositions of Richard Schmidt, a human factors expert, former Exponent scientist and co-author of driver error studies on which NHTSA relied to deny a 2000 petition to re-open an investigation into the phenomenon of UA, in which Schmidt was unable to explain the empirical starting point that led to the conclusion that most UA events are caused by driver error. Swigert first observed that Schmidt’s theory about the events that create a pedal-misapplication UA-crash is at odds with his working definition of UA.

Schmidt defined UA as: “A full, uncommanded full throttle situation from a stop or near stop after shifting from park or a drive gear with a perceived brake failure.” He further testified that in his view, drivers misposition their feet, mistakenly depress the accelerator instead of the brake, simultaneously as they shift into gear. But Schmidt conceded that he had not done any baseline research to determine what drivers typically do during vehicle start up – when and where they place their feet. And Schmidt said that in his view, the move to a full-throttle event is gradual, rather than immediate.  He believed the UA crash occurred when drivers lightly depress the accelerator pedal, thinking it’s the brake. When the car starts to move upon gear engagement, the driver presses a little harder still under the assumption that his foot is on the brake. As the vehicle continues to move, the driver gradually applies more pressure to the brake, until the vehicle movement is arrested by a crash.

“Since it is undisputed that in a classic sudden acceleration the throttle rapidly goes to wide open at gear engagement, Schmidt’s hypothesis is obviously inconsistent with this generally accepted description of a sudden acceleration. The core question, however, is whether there is a scientific or empirical basis for Schmidt’s hypothesis that pedal errors cause most sudden accelerations,” Swigert wrote in his decision.

Then, the judge attacked Schmidt’s scientific rigor. In examining Schmidt’s deposition testimony, Swigert found:

“It is apparent that Schmidt assumed that if no tangible or detectable evidence of a malfunction is found in the vehicle, the cause must be the driver. However, when Schmidt was pressed to explain the basis for this assumption, he conceded that: (1) he was unaware of any research showing that drivers occasionally misposition their foot on the accelerator pedal at start up; (2) he never consulted with an electrical engineer regarding his assumption that two detectable faults at least that ‘fix themselves’ were necessary for a sudden acceleration; ‘(3) that he had heard about Ford’s Updegrove investigation, but knew nothing about the results; (4) he has done no research regarding brake pedal force needed to stop an open throttle acceleration;’ and (5) when confronted with the fact that many sudden accelerations had been terminated by the driver disengaging the engine before a crash occurred, he said he would be ‘surprised’ if that were the case.”

Ancient History?

This decision tells a story that resonates beyond whatever Ford shoveled at NHTSA in the 1980s. In all that compost, Ford’s decision to withhold what it knew about the connection between EMI, its cruise control servo and unintended acceleration, were the seeds of thought that have taken root, and flourished at the agency.  These opinions continue to be expressed 30 years later. Even as late as 2003, the agency was using An Examination of Sudden Acceleration, as a reason to dismiss complaints of UA in Toyota vehicles. In a Federal Register notice denying a defect petition from a Lexus owner who experienced three UAs in his vehicle, NHTSA cited its 1989 study as part of the supporting evidence. The 1999 Lexus at issue, however, was equipped with a new electronic throttle control system; the Silver Book examined mechanical throttle control systems.

Take for example, a particularly striking e-mail from Toyota manager Chris Tinto recounting a June 2004 meeting with NHTSA ODI investigator Robert Young on the subject of unintended acceleration in Toyotas:

“Mr. Young was shown all of the failure modes of the ETC [Electronic Throttle Control] system, and was clear in expressing that none of the modes felt ‘unsafe’ to him, and he felt that the modes were unrelated to sudden acceleration. Mr. Young also drove the vehicle in such a way that he was able to apply both the accelerator and the brake pedal at the same time. He referred to this as “Dual Pedal Application.” He expressed his opinion that the complaints that the agency has received were most likely dual pedal application (i.e. not vehicle malfunction related). He also stated that it was very difficult to achieve this dual pedal application condition because the Camry has utilizes a wide (i.e. good) spacing between the accelerator pedal and the brake pedal.”

If Tinto’s retelling is accurate, this belief in driver error is so unshakeable that one of the agency’s most experienced investigative experts was ready to conclude that the complaints were due to dual pedal application even though the data – which showed a 400 percent increase in UA Camry complaints after Toyota went to electronic throttle controls – and his own direct observation – that the pedals had good spacing and that it was hard to actually hit both pedals at once – told him the exact opposite.

(Young was once similarly confident that a high-profile 1998 fatal crash involving a Ford police van in Minneapolis was a case of driver error, until he learned months later that an aftermarket device often used by police to keep brake lights flashing disabled the shift lock. This allowed the vehicles to surge forward upon gear engagement without touching the pedal.  The story of this crash and the agency’s subsequent findings are detailed in a Wall Street Journal article from November 1, 1999:  “A Simple Case of Sudden Acceleration – Or So It Seemed at First to Bob Young.”)

This assumption in the primacy of mechanical causes in Toyota UA incidents snakes it way through several subsequent NHTSA investigations – regardless of the absence of evidence or contradictory evidence. It’s woven into a conversation with the Las Vegas Metropolitan Police, trying to make sense of the January 2004 deaths of George and Maureen Yago in their 2002 Camry XLE.

Two witnesses following the Yagos into a casino parking garage said that they saw the vehicle pull slowly into a space and come to a stop (observing that the Camry’s brake lights were lit), when the vehicle suddenly took off, and shot off the fourth floor.

NHTSA never investigated this death. Nonetheless, ODI investigators speculated about causes with the police. According to the police report, ODI investigator Steve Chan carefully explained that “in the past two years there have been numerous complaints about a problem with the 2002 and 2003 model year Toyota Camrys. The complaint stems from a sudden acceleration problem, supposedly, operators of this type of vehicle have been slowing down or stopping, and suddenly, the car accelerates. In the previous complaints, some of the incidents had resulted in a collision, this was the first death. Chan explained how in 2002, Toyota went to a new type of accelerator. In the previous years, a gas pedal was connected to the engine via some type of cable or linkage. In 2002, the gas pedal is now connected to some type of a pedal position sensor, this sensor is in turn connected to wires, these wires connect to the cars computer, there are more wires which connect to some type of a servo or actuator. This connects to the engine to control the engine RPMs. After this change is when these type of incidents started to occur.”

But, then the conversation turns to pedal misapplication, and that is where it is left:

“Although, it does need to be brought up, there may have been other changes which coincided with this modification, changes such as pedal or seating position changes. We spoke about misapplication, being a possible cause of these types of collisions, misapplication is where a person goes to step on the brake, but is actually pushing on the gas. As the vehicle accelerates forward, the driver panics, and pushes down harder because the vehicle is not stopping, the vehicle only accelerates more, so until the driver realizes what is going on and lifts off the gas, or what happens more often is, they hit something. Although I do not have any current statistics, the type of case where a collision results predominantly occurs with the elderly. Plus their reaction times are slower and by the time they realize what is occurring a collision has occurred. [Chan] did not have any information on the ages of the drivers involved in their complaints, during my inspection of the gas pedal, locations of this vehicle, it seemed to me the pedals were extremely close. Furthermore, they appeared to be at the same height. It seemed to me a person could easily push on both pedals at the same time, and not know it. This would lead to a driver accelerating while braking.”

It shows up in the agency’s decision to deny a 2008 petition from William Kronholm, a Tacoma owner who experienced two brief UAs in his 2007 truck. Kronholm said that NHTSA investigators pushed pedal misapplication as a cause, because he was wearing ski boots at the time. An attempt to hit both pedals at once showed Kronholm, just as it showed Bob Young four years earlier, that he would have to move his foot into an unnatural position. For Kronholm, this was evidence that dual pedal application was not a cause.  Investigators, however, took pains to mention dual pedal application in their denial of Kronholm’s petition.

It culminated in the denial of an April 2009 petition from, Jeffrey Pepski, a Lexus ES 350 owner from Minnesota. Pepski asked the agency to re-open its probe of UA in Lexus vehicles equipped with electronic throttle control, and criticized it for focusing narrowly on all-weather floor mat interference. Pepski’s incident occurred at high speed in a vehicle that was only outfitted with a standard carpet mat. Although he had tried pumping and pulling up the accelerator with his foot, he could not stop the acceleration. Pepski requested “an additional investigation of model years 2002-2003 Lexus ES 300 for those ‘longer duration incidents involving uncontrollable acceleration where brake pedal application allegedly had no effect.’”

On May 5, about a week before Toyota would send an official response to NHTSA, one of Toyota’s Washington staffers, Chris Santucci sent an investigation status report to colleague According to Santucci, NHTSA was looking for help in crafting a denial:

“For background, NHTSA did inspect the petitioner’s vehicle. While they did not see clearly the witness marks of the carpeted floor mat on the carpet in the forward, unhooked position, they do suspect that the floor mat was responsible for the petitioner’s issue.”

“I have discussed our rebuttal with them, and they are welcoming of such a letter, They are struggling with sending an IR letter, because they shouldn’t ask us about floormat issues because the petitioner contends that NHTSA did not investigate throttle issues other than floor mat-related. So they should ask us for non-floor mat related reports, right? But they are concerned that if they ask for these other reports, they will have many reports that just cannot be explained, and since they do not think that they can explain them, they don’t really want them. Does that make sense? I think it is good news for Toyota.”

Jeff Pepski is adamant that the carpeted floor mat played no role in his incident. In an e-mail to SRS he said:

“My incident occurred on February 3, 2009. My petition to NHTSA was dated March 13, 2009 and I met with the NHTSA reps [Bill Collins and Stephen McHenry with the DOT] and Toyota rep [Mike Zarnecki, the Field Technical Specialist from the Lexus Central Area Office] on May 1, 2009. Since no chain of evidence existed, the possibility of any observable witness marks as of May 1 would be remote and the level of reliability would be non-existent. All three parties were present when I asked Mike Zarnecki to demonstrate how the floor mats could have possibly caused the accelerator pedal to become entrapped. After much manual manipulation of the floor mat, he was able to show how it may occur. At my request he pulled up and pushed down on the gas pedal; the floor mat immediately became free. I explained that the SUA that I experienced did not cease after I had done the same while driving on February 3. If the floor mat had entrapped the accelerator pedal as all three claimed, the vehicle would have stopped accelerating after dislodging the floor mat. The SUA I experienced continued as the floor mat was not the cause.”

Once again, NHTSA investigators were confronted with a direct observation that floor mat interference was not a probable cause of this incident. Toyota had never identified carpeted floor mats in Lexus vehicles as a cause of UA; nor had it ever recalled carpet mats in Lexus vehicles. Yet, months after the incident, ODI still wanted to believe that Pepski’s event was just another case of mechanical interference, and was uninterested in receiving information that challenged that belief.

Systematic and scientific metrics to determine what to investigate remain undeveloped. Instead, ODI relies on a system of “feelings.”

Since the agency never developed its own knowledge base of automotive electronics, it is wholly dependent on the representations of manufacturers. While automakers are always going to know much more about how their vehicles work than any outside entity, NHTSA appears ill-equipped to challenge even the falsehoods that are easy to detect. During the early Toyota investigations of 2003 and 2004, the automaker insisted that the UA events showing up in consumer complaints could not be electronic, because the failsafe system had not detected them, and set a Diagnostic Trouble Code. This was the gospel according to the Silver Book – at least two simultaneous and detectable faults would have to occur for the cruise control electronics to cause a sudden acceleration; and that, in the absence of such detectable faults, the most ‘plausible explanation was driver pedal error.

Toyota knew that errors could occur without setting a DTC. (For example, in an unrelated investigation into unpredictable engine failure in 2005-2008 Corollas, Toyota submitted multiple field technical reports showing problems that the ECU did not catch and record.) In a matter of hours, Dr. David Gilbert, an automotive electronics professor from Southern Illinois University and Toyota owner, showed that the accelerator pedal position sensor’s circuitry could allow the vehicle could go to a wide open throttle without the ECM catching the error. Automotive techs know that a vehicle can have a problem with no code and a code with no problem. Yet NHTSA readily accepted Toyota’s representations about the infallibility of its system.  The agency remains far behind in its understanding of complex vehicle electronics engineering and diagnostics, unable to refute or fruitfully examine potential malfunctions.

It can also be seen in the agency’s hiring decisions – ODI is still the province of mechanical engineers. Only after it was shamed in Congressional hearings about its lack of electronics expertise did it move to acquire a little. And because it doesn’t understand what it is supposed to be investigating, NHTSA doesn’t seem to understand what it should be regulating. Or is it the other way around? In either case, we are still awaiting the resumption of rulemaking around FMVSS 124 accelerator controls, written in 1972.

When Ford decided to bury evidence of the electronic root causes of UA, within the company and without, it helped to freeze the agency’s understanding of how to diagnose and remedy this difficult defect. This legal decision is as good an explanation as any for why, when it comes to automotive electronics, the agency isn’t even in the ballpark, let alone the ball game.

Researchers Bhanu Sood, Michael Osterman and Michael Pecht studied a pedal assemblies performed a physical analysis of an engine control system from a 2005 Camry XLE, V-6 and an accelerator pedal assembly from a defunct 2002 Camry. The 2005 engine control system included the ECM, an accelerator pedal unit, throttle body, electrical connectors and electrical connecting cables.

This tear-down of the accelerator pedal position sensors (APPS) in both Camrys revealed tin whisker formations. Tin whiskers are crystalline structures emanating from tin solder that can produce electrical shorts and current leakage, and have been associated with numerous electronic failures.  The trio of researchers did not have access to the vehicles’ history, so it was not known if the presence of tin whiskers was associated with any malfunctions during the life of either car.

“We were looking at the overall manufacturing of assembly circuit and looking for what level of construction had the potential for defects throughout the entire engine control system,” says Osterman, Senior Research Scientist and the director of the CALCE Electronic Products and System Consortium.

CALCE’s analysis, published in the current issue of the international journal Circuit World, lends support to the work of NASA scientists who found tin whiskers growing in the accelerator pedal unit of every potentiometer they examined. The February report, Technical Support to the National Highway Traffic Safety Administration on the Reported Toyota Motor Corporation Unintended Acceleration Investigation, was unclear on the subject of the total sample; NASA found tin whiskers growing in the APPSs of either three or four Camrys. One was associated with a vehicle in which the consumer reported that her pedal was ‘jumpy” and that the vehicle was “completely undriveable.” However, based on an analysis of warranty data which was performed by Toyota’s defense expert, Exponent, NHTSA concluded that the presence of tin whiskers did not represent a safety hazard. (see How NHTSA and NASA Gamed the Toyota Data)

On this point, the CALCE scientists sharply diverged. CALCE researchers have been examining the tin whisker phenomenon since 2002, looking at mitigation strategies, growth patterns and tin whisker failures. In addition, they have published widely on the subject of intermittent failures in automotive electrical environments and the difficulties manufacturers face in isolating their root causes. On this study, researchers found as many as six tin whiskers growing on one APPS. Unlike NESC, which used warranty data (secret, time-limited, and otherwise unreliable) as the basis for determining the prevalence of tin whiskers in the fleet and its effect on safety, CALCE used its algorithm and came up with the opposite conclusion:

“In our analysis, a significant number of tin whiskers were found. Using the CALCE Whisker Risk Calculator (CALCE) Tin Whisker Risk Calculator, 2005) to assess the failure risk posed by observed tin whisker formation on the conductor pairs, it was determined that the potential for a tin whisker shorting failure was 140/1 million. Considering the number of vehicles on the road, it is expected that this would present a significant safety hazard.”

In addition to tin whisker formation in the APPS, the CALCE researchers found the potential for tin whisker formation in the ECM:

“The ECM contains surface mount electronic devices connected with tin-lead solder to a multilayer PCB. … Interconnect terminals of the perimeter leaded devices were found to be plated with tin. In addition, tin plating was found on terminal pins of the edge connections. As previously discussed, tin-finished leads can grow tin whiskers which can lead to unintended electrical shorts.”

“We know whiskers can form on tin finished terminals,” Osterman said. “In this case, Toyota has tin plating in a rather sensitive area, where the system relies on changes in resistance to provide a signal for acceleration.”

In their discussion about the printed circuit board manufacturing processes of Toyota Camrys, CALCE scientists questioned the lack of a safety standard regarding automotive electronics, given broad range of whisker-induced failures. They were openly critical of NHTSA’s lack of action.

“It is highly likely that tin whiskers could induce a failure that is later undetected. For this reason, best practices for electronics design stipulate that tin not be used as a plating material. It is very questionable why the National Highway Traffic Safety Administration, with a stated mission to ‘save lives, prevent injuries and reduce economic costs due to road traffic crashes, through education, research, safety standards, and enforcement activity,’ has not come out with a requirement that no electronics use pure tin as a material component, since the potential for tin whiskers presents an unreasonable and unnecessary risk.”

Alice and Randy Whitfield of Quality Control Systems Corporation, ever the assiduous students of NHTSA’s statistical and informational folkways, went for broke. Shortly after the reports were released, they filed a Freedom of Information Act request for non-redacted versions of the reports and supporting material that was missing from the record. In response, NHTSA publicly released some of the information in the form of less redacted versions of Technical Assessment of Toyota Electronic Throttle Control (ETC) Systems and Technical Support to the National Highway Traffic Safety Administration on the Reported Toyota Motor Corporation Unintended Acceleration Investigation, but continued to withhold other information.

In April, NHTSA rejected a QCS FOIA request for an unredacted copy of the NESC report, its appendices and other unpublished reports mentioned in the footnotes. The agency subsequently denied the Whitfields’ appeal for some of the materials because “the Agency properly determined that the currently redacted materials are entitled to confidential treatment under FOIA Exemption 4.” Exemption 4 of the Freedom of Information Act is industry’s best friend, permitting the removal from the public record information containing confidential business secrets. NHTSA apparently is Toyota’s second best friend, because it has rarely denied the automaker’s requests for confidentiality on this basis – even when the information doesn’t qualify. The Whitfields noted that they had already found former redactions that had nothing to do with business secrets, like “production counts of Toyota Camrys which had been available on NHTSA’s own website for years.”

But what the government withholdeth, the Google giveth.

Alice and Randy Whitfield have posted a new brief report about their adventures in NHTSA information mining, Keeping Secrets about NASA’s “Toyota Study” of Unintended Acceleration. The Whitfields found via a Google search unredacted portions of the documents they sought. They were struck by the redaction in one sentence of the NASA report’s Appendix A about data losses on the Controller Area Network (CAN):    “Occurrences of CAN data loss are recorded in SRAM and remain available until the battery is disconnected. According to Toyota Motor Corporation (TMC) 292 instances were reported of CAN data loss by dealers for cars brought in for any problem. REDACTION.”

So what was so critical to Toyota’s ability to maintain its competitive edge that neither its rivals nor the great unwashed could see? Here’s the rest of it:

“Possible correlation of these incidences with UA cases was not checked.”

This discovery is of a piece with the general Swiss cheese-like nature of the NHTSA-NASA reports. Scratch the surface and you find:

- NHTSA relied on Toyota’s defense litigation experts, Exponent, for a warranty analysis used to dismiss the significance of physical evidence of an electronic cause of UA in some Toyotas. This conflict of interest was not disclosed.

- NHTSA and NASA based analyses on miscoded data and unsupported assumptions while failing to record and maintain the original data it was based on, preventing replication.

- NHTSA/NASA withheld from public view pieces of their report that are not related to Toyota’s confidential business.

That’s strike three. How many are yet to be discovered? We’ll all keep scratching.

In his withering decision, Senior Judge William T. Swigert of the Fifth Judicial Circuit in Sumter County, Florida ordered a new trial in which the jury would only consider compensatory and punitive damages in Stimpson v. Ford. The post-trial order is a victory for Attorney Thomas J. Murray, of Murray & Murray based in Sandusky, Ohio, who represented the Stimpson family.

The case concerned an October 28, 2003 crash which left Peggy Stimpson permanently paralyzed. Her husband alleged that he was unable to stop the couple’s 1991 Ford Aerostar, when it suddenly accelerated from their carport as he put the van into gear. The Aerostar hurtled more than 100 feet, and crashed into a utility pole.

In his 51-page decision, Judge Swigert excoriated Ford for systematically concealing a long history, stretching back to the 1970s, of studying the problem of electromagnetic interference and unintended acceleration, working to resolve it, but nonetheless finding many instances of it in the real world. Swigert enumerated each step Ford took in achieving a high level of corporate malfeasance – among them, lying to NHTSA, systematically destroying field technical reports that identified electromagnetic interference with the cruise control servo as a cause of unintended acceleration and misleading its own experts, who have repeatedly testified in other cases that driver error had to be the cause of such events.

“The proofs introduced at trial include various patents owned by Ford showing that electronic malfunctions in the cruise control system can cause sudden, unintended acceleration, in addition to reports from Ford’s engineers, including SIRs and CQIS reports, diagnosing sudden acceleration as a problem with the cruise control system. Ford’s Ishikawa engineering diagram likewise shows that EMI is a cause of sudden unintended acceleration.”

Swigert’s decision also rapped Ford’s Counsel J. Randolph Bibb for accusing the Stimpson’s attorney of lying and withholding the results of expert witness tests conducted to show what caused the tire marks left by the Stimpson’s Aerostar as it rocketed out of the carport. Both sides agreed that testimony regarding the tests would not be introduced, since they had not been recorded. But at trial, Ford’s attorney brought them up in a cross-examination and in his closing arguments, suggesting that the results had been withheld from the jury because they were unfavorable to the Stimpsons’ theory of the case.

We will recount the history of Ford’s concealment in all of its ignominious detail in a future blog post, and its implications for the much-relied-upon conclusions of the1989 An Examination of Sudden Acceleration, known within NHTSA as “The Silver Book.” Manufacturers, such as Ford, have been waving this tome in front of juries in UA cases, as proof positive of driver error. Judge Swigert, weighing it against Ford’s knowledge of electronic causes of unintended acceleration, as sketched by the internal documents and Ford employee testimony that the plaintiffs introduced at trial, was not impressed. He found it was based on false information and untested assumptions, for which no empirical evidence existed.

Stimpson V. Ford:  Findings of Fact, Conclusions of Law and Memorandum Decision

Stimpson V. Ford: Order on Plaintiffs’ Motion for Relief from Judgement, Partial Final Judgement in Favor of Plaintiffs on Liability, and Order Conditionally Granting New Trial.